Bench Memos

Originalism, Marriage, and a Black Sable Ferret

Following up on my long post, I’ll note an extended debate over on the Volokh Conspiracy between law professors Ilya Somin and Orin Kerr. Somin argues that there are “serious” originalist arguments that the Constitution requires states to redefine marriage to include same-sex couples. Kerr disagrees. As is usually the case in any debate on constitutional theory between Kerr and his libertarian co-conspirators, I agree with Kerr.

Relatedly, I’ll note these two thoughts in a recent post by law professor Michael Ramsey on the Originalism Blog:  

(1) It says something about originalism’s new place that the most prominent academic defender of same sex marriage [i.e., William Eskridge] makes the text’s original meaning the centerpiece of his argument [in a SCOTUSblog essay].  

(2) Whatever one thinks of the merits, it would be better from a rule-of-law perspective for the Court to adopt this approach — which as Professor Eskridge says, surely has at least a plausible root in original meaning (see also my thoughts here) — than to persist with whatever it has been doing in this area.  A win for same sex marriage on these terms would be a win for originalism, even if one is not persuaded.

As to the first: Yes, indeed, it does say something. But what does it say? I think it says, first, that an advocate will happily toss out any number of arguments in the hope that someone might accept one of them. I think it says, second—to borrow again from John O. McGinnis and Michael B. Rappaport—that non-originalists are eager “to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world.”

I’m puzzled by Ramsey’s second thought (even beyond my disagreement with him that Eskridge’s argument is plausible). It’s no “win for originalism” to reduce it to something that has no intelligible content, to something that can be manipulated to achieve any result that living constitutionalists desire. As Kerr nicely points out,

If we accept the full range of what today’s theorists say, it no longer makes sense to ask whether there is an originalist argument for a position. There are now originalist arguments for everything. For example, let’s say I claim that the Third Amendment establishes that the Supreme Court must consult a Black Sable ferret named Sarah before deciding any cases. According to [a minimal] definition [of originalism], there is indeed an originalist argument that the Supreme Court must consult a Black Sable ferret named Sarah before deciding any cases.

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